Since taking office, President Trump has appointed three new
members to the five-member board of the National Labor Relations Board
(“NLRB”), who will each serve a five year term. This has resulted in big changes to
Obama-era rulings. The rulings so far have
been pro-employer:

In Hy-Brand Industrial Contractors, 365 NLRB No. 156
(Dec. 14, 2017), the NLRB overruled the Browning-Ferris Industries, 362
NLRB No. 186, standard for determining joint employers. The NLRB returned to the pre-Browning-Ferris
standard, which requires proof that a company actually exercised some “direct
and immediate control” over the essential employment terms of another company’s
employees to become joint employers;

In Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the
NLRB overruled existing precedent and created a new test for evaluating
employer’s work rules. Under the old
law, a work rule was unlawful if an employee “would reasonably construe” the
rule to restrict protected concerted activity.
Under the new test, a work rule is unlawful only if it explicitly
restricts employee’s protected concerted activity, and, if it is found to do
so, the NLRB will use a two-part test to evaluate if the reasons for the rule
outweigh the potential impact on employee rights;

In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15,
2017), the NLRB reinstated the traditional community-of-interest standard for
determining an appropriate bargaining unit in union representation cases. Now, the NLRB will assess whether employees
in a proposed bargaining unit share interests that are sufficiently separate
and distinct from those of the remainder of the workforce to constitute an
appropriate unit for bargaining based on whether the employees: (1) are
organized into a separate department; (2) have distinct skills and training;
(3) have distinct job functions and perform distinct work; (4) are functionally
integrated with other employees; (5) have frequent contact with other
employees; (6) interchange with other employees; (7) have distinct terms and
conditions of employment; and (8) are separately supervised; and

In Raytheon Network Centric Systems, 365 NLRB No. 161
(Dec. 15, 2017), the NLRB reversed an ALJ’s findings that an employer violated
the National Labor Relations Act when it unilaterally implemented changes to
employee healthcare benefits. The NLRB
held that actions do not constitute a change if they are similar in kind and
degree with an established past practice consisting of comparable unilateral
action. This applies regardless of
whether a collective bargaining agreement was in effect when the past practice
was created, and whether no collective bargaining agreement existed when the
disputed actions were taken.

Although these rulings are decidedly pro-employer, they do
not mean that employers should assume that their actions will be supported by
the NLRB. Employers who are new to
dealing with union activities should re-evaluate their work rules and
justifications for changes to terms and conditions to ensure they are
consistent with these recent rulings.